Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D. Botter, J.A.D. (concurring).
Plaintiff Stephen Setrin was stabbed while on the grounds of Glassboro State College (college). He filed a complaint against Calvin C. Troy, the one who allegedly inflicted the injuries, and the college, seeking damages for the injuries sustained. His father joined in the action, asserting his derivative claim. A motion of the college for summary judgment was granted and the complaint against it was dismissed. The judgment of dismissal was based on the conclusion of the trial judge that plaintiffs' action against the college was barred by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.
A consideration of the entire record, giving plaintiff the benefit of all favorable inferences, R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield , 17 N.J. 67, 73-77 (1954), discloses the following.
Plaintiff Stephen alleges in his complaint that prior to December 12, 1972 there were incidents of racial unrest at
the college which involved rioting between black and white students and the college was aware of this condition. On the evening of December 12 Stephen, a student at the college, attended a basketball game in the college gymnasium. During the game rioting broke out between black and white students and at half-time Stephen left the gymnasium to return to his dormitory. While enroute from the gymnasium to his dormitory he was attacked by defendant Troy without provocation or warning and stabbed in the abdomen. In depositions Stephen describes the incident in the following words:
He further states he walked back, "got some pop corn" and started out the door of the gymnasium when he was accosted by defendant Troy and two others. He walked around them out the door and started toward his dormitory. Troy and the others followed, words ensued, resulting in an altercation and Stephen was stabbed.
Plaintiffs' allegations of negligence on the part of the college, as contained in plaintiffs' factual contentions in the pretrial order, include the charge that the college "was negligent in failing to exercise proper supervisory care having knowledge of the previous episodes of racial disturbance which occurred prior to the game and during the game" and, further, was negligent "in that it failed to have sufficient police officers or guards in attendance at said game to prevent assaults between black and white students attending said college."
Plaintiffs originally contended that the college was not a state entity and, therefore, the New Jersey Tort Claims Act was not applicable. That contention has been abandoned.
Plaintiffs' present contention is that the trial judge erred in holding the college immune from liability under the New Jersey Tort Claims Act.
(1) their claim is not based on any alleged failure to provide police protection within the meaning of ...